Jacobs v. State

• Decision Date: 17 April 1912
• Citation: 146 S.W. 558
• Parties: JACOBS v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W. 558

JACOBS v. STATE.

Court of Criminal Appeals of Texas.

April 17, 1912.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Elbert Jacobs was convicted of rape, and appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The jury alloted appellant 25 years in the penitentiary under a charge of rape.

There are several bills of exception in the record, several of which may be grouped.

1. Bill of exceptions No. 1 shows Gullick testified that he heard prosecutrix crying and trying to talk, and heard defendant telling her to hush or shut up, something of that kind. "I asked what was the matter, and the defendant said, `It is nobody's business,' or `None of your business.' I said, `Do you know who you are talking to?' and snatched the defendant around, and he then said, `It don't make any difference.' I said, `Yes, it does too.' She (the prosecutrix) was trying to talk, and the defendant told her to hush or shut up, and I said, `Well, come on.' She then said something about a gun, and I made a rough quick search of the defendant and found no gun, and I said to the defendant, `Well, if you won't let her talk here, we will let her talk in court,' and I then carried the defendant to jail." The witness Thompson testified, as shown by bill No. 5: "Defendant dragged prosecutrix across the sidewalk on the south side of the public square, and when she hit the pavement she hollered for help, and these little Syrian women come out there. They were talking so fast I don't know what they were saying. I could not understand them." This was excepted to by appellant. This and the former bill were qualified by the judge as follows: "The occurrence testified by the witnesses Thompson, Gullick, and Davis happened soon after the alleged assault and before defendant and prosecutrix had separated after the assault, in the presence of defendant, was a part of the res gestæ, showed defendant's state of mind, also was in the nature of an outcry by prosecutrix. By a reference to the statement of facts, it will clearly appear that this testimony was admissible." There is another bill reserved to the testimony of a witness named Davis in connection with the same matter. It is unnecessary, we think, to recapitulate what is in the other bill. We are of opinion this testimony was clearly admissible, especially in view of the qualification by the judge.

Without going into a detailed statement of the evidence, which is very voluminous, it will suffice, perhaps, in this connection, to state that on the same night of the occurrences mentioned in the bills, the state proved by prosecutrix that appellant had forced intercourse with her down in the woods, a little southwest of the hospital building of the Cotton Belt Railroad in the western edge of the city of Tyler; that he had kept her under his authority and control until he reached the point mentioned by the witnesses in the city of Tyler; that he had employed a hack at that point for the purpose of conveying her with him to secure a marriage license and the services of a justice of the peace to perform the ceremony in the consummation of a marriage between them. Prosecutrix was protesting against this, and these occurrences mentioned in the bills happened. Under this condition of the record, there is, in our judgment, no valid reason why this evidence was not admissible before the jury. This was the first time that prosecutrix had been placed where she could make an outcry or statement to any one, and even if it had not been, it was a part of the purposes shown by the evidence of appellant, after having forced the woman into intercourse, to further force her to marry him on this particular night. See Thompson v. State, 11 Tex. App. 51; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep. 794. We are of opinion also it was admissible under Sharp v. State, 15 Tex. App. 171; also, under Grimes v. State, 141 S. W. 261.

2. There are two other bills, Nos. 2 and 3, which complain of the admission of the testimony of J. R. Davis, in substance, that defendant telephoned to Davis' store and got him to have prosecutrix to come to the telephone on the afternoon and prior to the alleged offense at night. Appellant told Davis his name, and Davis recognized his voice. Davis testified that he heard what prosecutrix said to defendant over the phone, and that she said, "No, No, No," all along; that after she left the telephone she told him not to call her to the telephone for defendant any more because she did not care anything for it at all. The court qualified this bill by stating: "The defendant claimed that prosecutrix had promised to marry him, had consented to the act of sexual intercourse with defendant on a number of occasions, and that his company was always welcomed by her. She, the prosecutrix, had testified to the contrary and claimed she had avoided and shunned defendant on all occasions. Defendant claimed that the conversation over the phone was with her consent and willingly engaged in by her. This she denied, and this testimony was admitted on this issue." We are of opinion the court was correct in admitting this testimony under the above statement.

3. Bill No. 7 is to be disposed of under the qualification placed to bill of exceptions No. 5 by the court, unnecessary here to mention.

4. Bill No. 8 recites: That Adline Thomas, mother of prosecutrix, was permitted to testify that John Kennedy brought her, prosecutrix, home to her the morning after the outrage is alleged to have been committed. They got home before day. That she examined her daughter's face and body to ascertain if there were any bruises on her, and found bruises on her neck on the right side. Her face was bruised up. Her body was bruised up, and blue places were found under her clothes where he had beaten her. That she made a liniment and rubbed her mightily. Prosecutrix was unable to be up. That she carried her to Dr. Lacy on that same day, and that no doctor had attended her before she brought her to Dr. Lacy. That the doctor came out to see her. That she was confined to her bed off and on two or three weeks. Objection was urged to this, that it was irrelevant and not a part of the res gestæ; that the same occurred when defendant was not present and knew nothing about it; and that the same happened the following day after the alleged assault the previous night. These objections were overruled, and, we think, properly. The condition of the prosecutrix early the next morning and the day following was admissible in connection with the other facts for several reasons. It bore upon the question of force and consent. Prosecutrix testified that he had forced her, under circumstances that would constitute rape, using his physical strength, beating her, and also used a pistol to force his desires. This assault occurred something like half after 10 or 11 o'clock at night. Her physical condition early the next morning are physical facts that might be proper evidence in the case.

5. Bill No. 9 recites that Hattie Bledsoe testified: "I have never heard anything of her (meaning prosecutrix) general reputation for virtue and chastity till this happened. It was good so far as I know. She was on the delicate order." Objection was urged to this because there was no testimony by any witness for the defendant to call for this testimony in rebuttal, and the same was...